Hill v. State , 1971 Tenn. Crim. App. LEXIS 480 ( 1971 )

GALBREATH, Judge

(concurring).

I concur fully in the majority opinion.

I would further commend the manner in which the petition in this case was disposed of in the trial court. To the grossly inadequate petition the respondent filed a proper motion to strike the petition setting out fully the reasons the petitioner was entitled to no relief. Upon due notice, the motion came on to be heard; and after consideration of both parties’ positions, the court granted the motion of the respondent and dismissed the petition.

I commend the trial court in following this correct procedure because surprisingly many of the trial courts do not afford the petitioner the basic and elemental right I believe is firmly his by virtue of the due process clause of the 14th Amendment to the U. S. Constitution. Many of our courts routinely dismiss petitions such as the one in this case without any notice to the petitioner or his attorney, sometimes without even a request to do so from the State, in the face of the emphatic admonitions in our statutes that no post conviction petition shall be dismissed for defects, incompleteness, lack of form, etc., without opportunity given to amend. T.C.A. § 40-3807, § 40-3809, § 40-3815.

In speaking of the importance of following established procedural guidelines, the United States Supreme Court has said:

“The fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked. If that is preserved, the demands of due process are fulfilled.” Anderson National Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 606, 88 L.Ed. 692.